Nobody deserves to face punishment for a health condition. Discover more about the legislation that criminalizes HIV and its implications for women.

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No one should face penalties merely for having a health condition. However, in numerous regions across the globe, individuals living with HIV are subjected to unjust laws and practices that punish them solely based on their HIV-positive status. Essentially, these individuals may encounter criminal charges for actions that wouldn't be deemed criminal if performed by someone who is not HIV-positive, such as participating in consensual sex with another adult. This practice is commonly referred to as HIV criminalization.

UNAIDS reported that in 2020, 92 countries had laws criminalizing the non-disclosure, exposure, and transmission of HIV. A pertinent case is that of Julie Graham, a young nurse from Pennsylvania who was arrested after a man she dated accused her of not disclosing her HIV status. Despite the fact that the man did not contract HIV and transmission was impossible due to Julie’s undetectable viral load, she faced charges. Pennsylvania lacks specific HIV laws, yet Julie was charged with sexual assault, aggravated assault, reckless endangerment, and simple assault, solely because of her HIV status during their consensual relationship.

Julie isn't an exception: In most reported HIV criminalization cases worldwide, the focus isn't on HIV transmission but rather on the supposed non-disclosure of HIV status (where someone claims their partner didn’t inform them about their HIV-positive status). This essentially boils down to one partner's word against the other and is nearly impossible to definitively prove. Although numerous criminal justice systems are supposed to uphold principles of due process and the presumption of "innocent until proven guilty," these principles are compromised when individuals living with HIV are automatically perceived as sexual predators and “infectors,” simply because they have a health condition.

Some situations concern actions that carry no risk or an extremely minimal risk of HIV transmission. This includes behaviors like spitting, biting, scratching, oral sex, protected sex using condoms, or sex with an HIV-positive person who is on effective medication. These laws were initially founded on myths and misunderstandings about how HIV spreads. When enforced, they bolster fear, discrimination, and stigma against individuals living with HIV, and spread harmful misinformation about HIV transmission and prevention.

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The initial HIV-related prosecutions and legislation emerged in the mid- to late-1980s. During this period, HIV was often a fatal diagnosis for millions globally. These legal measures aimed to manage an overwhelming epidemic that very few people comprehended. However, they also perpetuated the false notion that individuals with HIV were dangerous “monsters” and that the risk of people “intentionally infecting” others was significant, even though instances of deliberate transmission of HIV are exceedingly rare.

It would appear logical to assume that criminalizing HIV would decrease as we near controlling the epidemic with advanced tools. Despite the availability of effective HIV medication that can significantly prolong and enhance the lives of those with HIV, along with cutting the transmission risk to zero for those on treatment, the trend of criminalizing HIV status has actually risen in recent years. This highlights even more clearly that these laws are rooted in irrational fears rather than the current scientific understanding of HIV.

There has never been any proof that these laws contribute to protecting community health. Additionally, while advocates and health professionals strive daily to provide HIV drugs to those affected by HIV, ensuring their well-being and lowering transmission risks to their partners, these laws hinder their efforts by fostering stigma and discrimination.

There is no proof that these laws help safeguard the health of any community.

No evidence has ever shown that these laws protect community health.

Many HIV criminalization laws only require that someone was aware of their HIV-positive status to be prosecuted. This essentially penalizes individuals for the responsible act of getting tested and knowing their HIV status. This is especially problematic for the partner who first learns of their status because the accusing partner can allege they contracted HIV from the other, even if the accuser had never been tested before. Since women are generally more proactive than men about engaging in sexual and reproductive healthcare, they often discover their HIV status before their male partners.

This was what happened to Samukelisiwe Mlilo of Zimbabwe. Samukelisiwe claimed that she disclosed her HIV status to her husband during their marriage. But in 2012, she was found guilty of “deliberately infecting” her husband with HIV. She may spend up to 20 years in prison, despite no proof that her husband acquired HIV from her. She also said that her husband made the complaint in revenge against her because she reported him for intimate-partner violence.

A frequently cited reason for HIV criminalization laws is the protection of women from deceitful or potentially violent partners who may lie about their HIV status, putting their girlfriends or wives at risk of infection. However, these laws fail to encourage truthfulness or remedy violence within relationships. More often than not, they are exploited as means of abuse, harassment, or coercion, as illustrated by Samukelisiwe’s situation. These laws do not tackle the widespread issue of gender-based violence or the imbalanced power relations that may make women susceptible to contracting HIV.

Women who face prosecution or accusations in HIV-specific cases risk losing their homes, child custody, access to services, and their reputation within their community, among other devastating consequences. For instance, in Louisiana, individuals found guilty under the “intentional exposure” law are required to register as sex offenders upon release from prison. This added burden makes it even harder for them to rebuild their lives after incarceration.

The very rules or principles you'd consider using against someone you think wronged you can just as easily be applied to you.

The very laws or principles you wish to employ against someone you think wronged you can just as easily be turned back on you.

Moreover, communities that already face excessive levels of policing and incarceration often endure the greatest impact of HIV-related charges. This includes sex workers (or individuals perceived to be sex workers) and communities of color. For example, in Australia, CJ Palmer, a transgender woman and former sex worker, was convicted of grievous bodily harm in a case involving alleged HIV transmission to a former partner. CJ is now enduring a severe sentence — in a men’s prison, despite being a woman, which exacerbates the punishment even further.

What should be done about those who deliberately transmit HIV to others? Is it appropriate to penalize them?

Instances where individuals deliberately try to infect others with HIV are extremely uncommon. If such a rare incident does happen, it's crucial to apply general laws with caution rather than laws that treat HIV as uniquely hazardous. This application should adhere to key legal principles, ensuring a high standard of proof for intent to harm, and aligning the punishment's severity directly with the harm inflicted.

Under the existing laws and practices, the severity of punishments often far exceeds the harm they aim to address. Take Texas, for example: there, a man was sentenced to 35 years in prison for assault with a deadly weapon simply for spitting at a police officer, even though saliva cannot transmit HIV. Additionally, the concept of intent is often interpreted so broadly that it includes situations where no harm was actually meant.

It's crucial to understand that “intentionally infecting” someone with HIV is different from not revealing one’s HIV status. Considering the challenges in transmitting HIV, even in high-risk scenarios, having sex or contact with someone who has HIV doesn't necessarily mean the virus will be passed on. Moreover, there could be numerous complex reasons for not disclosing one’s status to a sexual partner, such as the fear of violence. Simply stating “I am living with HIV” may not always be a safe choice.

There are several actions individuals can take to combat HIV stigma and make disclosing HIV status safer in communities worldwide. For instance, you might join an advocacy group or inform people in your community about HIV and clarify how it is (and isn't) transmitted. Eliminating laws that perpetuate stigma and fear, rather than supporting public health and community safety, is also a crucial step.

What happens if someone who has HIV, such as a partner, commits rape or sexual abuse against another person?

There are legal measures in place to combat sexual violence in such situations. Nevertheless, these laws are frequently not effectively upheld, particularly in instances of marital rape. Penalizing individuals for their HIV status does not safeguard women from sexual violence. Committing rape is a crime; merely having HIV is not.

Moreover, several specialists in sexual assault legislation argue that applying these laws to individuals accused solely due to their HIV status, rather than any actual assault, might undermine their effectiveness in combating gender-based violence.

My partner hid the fact that he was HIV positive, and now I am also infected. I feel deeply wronged. Is taking legal action my only recourse?

It's perfectly reasonable to feel angry if you contract HIV and think it's someone else’s responsibility, especially if they didn't disclose their HIV status, lied when you asked, or you felt unable to negotiate condom use during sex. However, living with HIV doesn't equate to a death sentence, while pursuing legal action against someone might be. Filing charges against a former sexual partner may seem justified, yet it could result in that person spending years in prison or having to register as a sex offender. Additionally, as the complainant, you could face having intimate details of your life revealed in court and the media—this includes your own HIV status.

At times, individuals submit a complaint to the police and then reconsider, but by that point, it's usually too late. Once law enforcement begins investigating, deciding to back out might not halt the investigation or prevent prosecution. Additionally, this situation could lead to further criminalization, particularly for those living with HIV. You might initiate charges and find yourself facing legal action instead. The very laws or principles you intend to apply against someone you believe has wronged you can just as easily be turned against you. It's crucial to think thoroughly before initiating a legal process that you might later regret.

Exploring other methods for mending divides within communities and relationships caused by HIV transmission is essential. One such method is restorative justice, which emphasizes healing by addressing the needs of the harmed individuals and seeking accountability from those responsible. This approach helps to prevent the harsh repercussions that come with going through the criminal justice system, impacting not just the individuals involved, but their families and communities as well.

Finally, many people believe that the stigma surrounding HIV significantly contributes to the challenges faced by those living with the condition. These laws exacerbate that stigma and negatively affect the lives of individuals with HIV.

I've come across the saying "Undetectable Equals Untransmittable." How can we leverage this knowledge to challenge and change these unjust, outdated laws?

In your advocacy, it's crucial to avoid perpetuating the mistaken belief that it's acceptable to legally penalize individuals living with HIV if they lack access to HIV medication and don't have an undetectable viral load.

To combat these stigmatizing laws, it's crucial to provide up-to-date scientific information about HIV.

In the battle to amend these stigmatizing laws, it is crucial to disseminate up-to-date scientific information about HIV.

HIV criminalization laws fail to account for the contemporary realities of living with HIV. Today, we understand that taking HIV medication and achieving an undetectable viral load is a highly effective method of preventing HIV transmission. This reality, backed by extensive research, is commonly summarized by the community with the phrase "Undetectable Equals Untransmittable," or U=U. Despite the proven fact of U=U, existing laws remain unchanged.

Advocating for the revision of these stigmatizing laws requires us to disseminate up-to-date scientific insights about HIV. When engaging with legislators and community members, the idea of U=U can be particularly compelling in illustrating the critical need to eliminate obstacles to HIV care and treatment — including stigmatizing laws — for the well-being and lives of those affected by HIV.

Furthermore, the scientific principles underlying U=U can serve as valuable evidence for a legal team in an HIV criminalization case to demonstrate that the individual had no intention of causing harm to others. Take, for instance, a woman known as “El” in Malawi, who was jailed after unintentionally breastfeeding another woman's baby (while also intentionally breastfeeding her own child). She faced charges of "carrying out a negligent and reckless act, likely to spread a life-threatening disease." Eventually, she found a lawyer knowledgeable about HIV who was able to evidence the "infinitesimal risk" of HIV transmission through breastfeeding when a woman is on effective HIV medication, as El was.

Each individual case varies significantly from the widespread reform of HIV criminal laws, which has the potential to impact thousands of individuals. It is crucial that the updated laws do not stigmatize or criminalize those who, for various reasons, may have detectable viral loads. This is particularly important for women, who might face additional challenges in achieving undetectable viral loads due to a range of factors, such as:.

• Women are generally diagnosed at a later stage in life compared to men.
• Putting the well-being of others before their own.
• Increased levels of violence and poverty, along with the instability caused by these social health factors, can create challenges in maintaining a consistent medication routine.

Punishing individuals because of their HIV status negatively impacts public health and is always unacceptable, regardless of their viral load.

What happens if I'm accused of not disclosing my HIV status?

1. Know your rights. In the United States, if you are taken into custody, you have the right to remain silent until a lawyer is with you. Positive Women’s Network — USA has created an excellent Know Your Rights guide to help safeguard you against any HIV-related accusations; you can find this guide on the PWN-USA website.
2. Get help. It's crucial to have representation from individuals who either possess knowledge about HIV and HIV criminalization or are open to receiving guidance from experts in this field. Reach out to your local HIV organization or legal clinic for assistance. In the US, these national organizations can also assist in locating legal representation: - American Civil Liberties Union (to find your local ACLU chapter): aclu.org - The Center for HIV Law and Policy: www.hivlawandpolicy.org - Lambda Legal: lambdalegal.org - Sero Project: seroproject.com HIV Justice Worldwide is a global consortium advocating against HIV criminalization. They might help you find local legal representation, although they don't provide individual legal advice or representation. You can contact them through the form on their website.
3. Know that you are not alone. Numerous individuals have encountered HIV-related charges, and there is a burgeoning international movement challenging these unjust practices. The Sero Project brings together a network of individuals living with HIV who have endured HIV criminalization. They can assist in connecting you to a supportive community and, should you wish, help you participate in advocacy efforts to eradicate HIV criminalization in your region.

We would like to extend our gratitude to S. Mandisa Moore-O’Neal, Esq., from The Moore-O’Neal Law Group, a Louisiana-based Black feminist law and policy practice, for her review of the original edition of this fact sheet.